August 20, 2019 Articles

The Future of U.S. Pretrial Discovery Involving European Union Data after Salt River

The Arizona District Court may have provided a blueprint.

By Craig D. Cannon, James J. Hefferan Jr., Katie King, and Virginia D. Ring

The underlying issues addressed in Salt River Project Agricultural Improvement and Power District v. Trench-France SAS, et al. are hardly novel, but the Arizona District Court’s decision represents a potential watershed moment in U.S. pretrial discovery practice and procedure. 303 F. Supp. 3d 1004 (D. Ariz. 2018). The long-standing tension between the common-law regime of the United States (with broad discovery requirements and little regard for data privacy) and the civil-law traditions of most European countries (with limited or no pretrial discovery and immense deference to individual rights and data privacy) has previously resulted in a long list of court orders that outright reject European Union (EU) data-privacy laws in favor of U.S. discovery laws. As discussed in more detail below, the Salt River court, however, may have provided the blueprint for the future of U.S. pretrial discovery that involves the handling of protected EU data. Indeed, Salt River promotes the application of a foreign mechanism to US discovery overseen by a foreign discovery master. The implications of potential discovery delays, increased costs, the need to hire local counsel, and more, are far-reaching.

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